What is the Effect on Cannaibs Criminality if Reclassifying Marijuana from a Schedule I to a Schedule III ?

Should cannabis be transferred from a Schedule I categorization to a Schedule III categorization under the control of the United States Federal Governments Controlled Substance Act (CSA), it would signify a substantial modification to federal law as Pertaining to Drugs. Modifying these categories would not now mean the cannabis was federally lawful. Additionally, it would not eliminate most of the federal criminal liability (criminal charges) with respect to marijuana use. The effect on an individual’s or business’ criminal liability would be limited, concentrated and nearly entirely indirect unless more legislative activity occurs in Congress regarding such reclassification.

This Article will Discuss: Current Federal Law.

The New Federal Classification For Marijuana: What Will Change, What Will Not Change On The Criminal Side Of Things.

I. Overview: Schedule I vs. Schedule III

Under the CSA:

• Schedule I Substances are considered to have no currently accepted medical use and have an extremely high potential for abuse (for example, heroin).
• Schedule III Substances are classified as having currently accepted medical uses; however, the potential for abuse is lower than for Schedule I or II Substances and may be prescribed under strict regulation (for example, Ketamine, anabolic steroids).

Changing the classification of marijuana to Schedule III indicates that there is potential medical benefit associated with using marijuana and will still be subject to federal regulation/enforcement as a Schedule III Substance.

II. Changes to Federal Criminal Liability

1. Certain Schedule-specific penalties reduced

Certain federal criminal laws only apply to Schedule I or II substances. Therefore, once/if marijuana were removed from the Schedule I classification:

Certain Schedule I-specific penalties will no longer apply, including limitations on research, registration and regulatory violations. Marijuana would fall under the same regulatory framework as other Schedule III Controlled Substances, although, in theory only.

While these changes are limited in nature pertaining to marijuana being removed from a classification above Schedule I, the elimination of those same penalties does not impact the fundamental nature of the Criminal prohibition related to Trafficking and/or Possession.

2. Medical Use Identification (Without Pretty Much Any Legal Protection):

A reclassification of marijuana to a Schedule III drug would indicate to the federal government that there is enough evidence demonstrating that marijuana has a medical use. This change would allow the following:

FDA-approved marijuana drugs to be created; More legal medical research on marijuana to be conducted; Reductions in legal issues surrounding medical research and pharmaceutical companies trying to develop marijuana based medications.

However, only FDA-approved products would be legally produced or sold; all marijuana products that were not FDA approved would still be prohibited under U.S. Federal law.

III. What Will Not Change:

1. Federal Drug Crime Definitions Will Not Be Changed

Most of the serious federally charged marijuana offenses — e.g. manufacturing, distributing, possessing with the intent to sell, and trafficking large amounts of marijuana — fall under the same parameters (i.e. marijuana type and quantity) regardless of whether or not it’s classified as a Schedule 1, Schedule II, Schedule III, etc. drugs.

Therefore:
Marijuana Trafficking will still carry mandatory minimum sentences and felony exposure; Possession of marijuana will still be a federal crime; Federal prosecutors will still have the authority to prosecute marijuana-related crimes.

To sum it up, just changing the schedule does not mean that marijuana will be decriminalized on a Federal level.

2. There is No Automatic Retroactive Release for Prior Convictions

Reclassifying marijuana to Schedule III will not:
Vacate a person’s prior marijuana conviction; Expunge their criminal record for marijuana; Automatically reduce their sentence if they were already convicted of a marijuana-related crime.

In order to receive any type of retroactive relief from past marijuana convictions, an individual would have to receive legislation or an executive order by the President to do so.

IV. Secondary Criminal Law Effects

1. Firearms, Immigration, and Federal Benefits

A few federal restrictions that are directly tied to the definition of improper usage or illicit activity (rather than to the schedule classification of the drug) will remain limited to their current form (e.g., the prohibitions against firearms for “unlawful users of controlled substances”).

The reclassification of marijuana to a Schedule III classification may create:

• Weakened Legal Basis for Some Collateral Penalties;
• Litigation or Reinterpretation of Existing Federal Law and Rules by the Courts and Agencies.

While these potential outcomes may occur, any change in the legal status of marijuana will occur in an incremental and unpredictable manner.

2. Federal/State Tension Will Remain

Regardless of whether or not marijuana is classified as Schedule III:

• State Licensed Marijuana Businesses Will Continuously Be Operating In Contrast To Federal Laws;
• Federal Enforcement Will Continuously Be at the Discretion of Law Enforcement Agencies as to How to Address State Licensed Marijuana Businesses;
• Ultimate Coordination Between the Federal and State Law and Regulatory Systems for Marijuana Will Require Congressional Action.

The movement to change marijuana from a Schedule I substance to a Schedule III substance is an important change for both the culture of marijuana use and the regulation of it because it allows for the acceptance of marijuana for medical use.

However, as it relates to criminal liability:

All federal marijuana offenses would continue to be treated as crimes.

Most sentencing guidelines will continue to apply.

All non- FDA approved uses of marijuana will continue to be prohibited by federal law.

Thus, reclassifying marijuana is an important step towards the reform of marijuana regulation; however, it will not resolve the issue of criminal liability for marijuana. Changes to criminal liability for marijuana will still be dependent upon Congress passing new legislation.